J.S. v. Scarsdale Union Free Sch. Dist.

Decision Date18 November 2011
Docket NumberCase No. 09–CV–9571 (KMK).
Citation826 F.Supp.2d 635,279 Ed. Law Rep. 229
PartiesJ.S. and A.G., individually and on behalf of J.G., a child with a disability, Plaintiffs, v. SCARSDALE UNION FREE SCHOOL DISTRICT, Defendant.
CourtU.S. District Court — Southern District of New York


Jesse C. Cutler, Esq., Skyer, Castro, Foley & Gersten, New York, NY, for Plaintiff.

Stephanie L. Burns, Esq., Keane & Beane, P.C., White Plains, NY, for Defendant.


KENNETH M. KARAS, District Judge:

Plaintiffs, J.S. and A.G. (“Parents” or Plaintiffs), are the parents of J.G., a student who, through January 2008, attended the public schools run by Defendant, the Scarsdale Union Free School District (Defendant or the “District”). This case is an appeal and cross-appeal, brought pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., of an August 19, 2009 decision of a State Review Officer (“SRO”) denying Plaintiffs' petition for tuition reimbursement for the period of April 4, 2008 through June 30, 2009. The Parents' claim was heard by an Impartial Hearing Officer (“IHO”) who conducted a four-day due process hearing (“the hearing”). Both the IHO and SRO concluded, based on the record developed before the IHO, that while the District failed to provide J.G. with a free appropriate public education (“FAPE”) and the Parents' unilaterally chosen private placement was appropriate, equitable factors barred an award of tuition reimbursement to the Parents. The Parents challenge this determination, while the District's cross-appeal seeks reversal of the findings that it denied J.G. a FAPE and that the Parents' private placement was appropriate. Both Parties have moved for summary judgment. For the reasons stated herein, Plaintiffs' motion for summary judgment is granted in part and denied in part, and Defendant's motion for summary judgment is denied.

I. Background

The Court has reviewed the full contents of the Administrative Record provided by the Parties. The following facts are drawn from the Parties' Local Rule 56.1 statements, transcripts of the testimony heard by the IHO, and exhibits introduced at the hearing. Although the Parents' claim for tuition reimbursement covers only the costs of J.G.'s private placement from April 4, 2008 through June 30, 2009 (Compl. ¶ 53(e)), a full discussion of J.G.'s educational history prior to the 20072008 school year is necessary.

A. The 20052006 School Year: J.G.'s Freshman Year at Scarsdale High School

J.G., now twenty years old, attended the Scarsdale public schools from kindergarten through January of her eleventh grade year, in the 20072008 school year. (Transcript of Due Process Hearing (“Tr.”) 697 (testimony of A.G., J.G.'s father).) In 2005, J.G. entered Scarsdale High School. (Def.'s Statement of Undisputed Facts Pursuant to L.R. 56.1 (“Def.'s 56.1”) ¶ 14; District Exhibit (“DX”) 32.) 1 Up until high school, J.G. had generally excelled academically (and indeed appeared somewhat more advanced than some of her peers), and, according to information provided by the Parents, J.G. had presented no major problems in her educational or social development. (DX 8, at 1 (Educational History of J.G. dated Apr. 13, 2008); DX 11, at 2 (Neuropsychological Evaluation of J.G. by Fern Leventhal, Ph.D.); Parents' Exhibit (“PX”) C, at 9 (Application for Admission to Montana Academy dated Feb. 16, 2008).) On paper, J.G. did fairly well academically during her freshman year at Scarsdale, earning an A-grade in Art, B+ grades in English, World History, and Biology, a B in Physical Education, and B-grades in Honors Math and Latin. (DX 16 (Scarsdale Senior High School Transcript generated Mar. 11, 2008).) 2 At the end of the year, J.G. earned a 93 on the Living Environment Regents Exam. ( Id.) Below the surface, however, J.G. began to have difficulties in school in her freshman year. J.G. began Scarsdale High School with an ambitious schedule, having “insisted,” against her Parents' wishes, on taking Latin as well as Honors Spanish, and having switched from “Advanced” to Honors Math approximately one month into the school year. (Tr. 702–03 (testimony of A.G.).) 3 According to A.G., J.G. quickly became overwhelmed by the work and “struggled” through the year, but she did “hold [ ] her own.” ( Id. at 704–05.) J.G. had no trouble getting to school on time that year. ( Id. at 709.)

J.G. also displayed some signs of emotional difficulties during her freshman year. In the spring of that year, J.G., who had played softball through the eighth grade, tried out for the junior varsity softball team, but was rejected. ( Id. at 705.) J.G. was “devastated” and told her Parents that she “wanted to kill herself.” ( Id.) The next day, J.G. said that her comment was an overreaction. ( Id.) Nonetheless, A.G. called the head of the athletic department and informed him of J.G.'s comments, and J.G. was subsequently let on the team, along with all the other students who had tried out but not made the team. ( Id. at 707.) A.G. also referred at the hearing to J.G. seeing “someone at the school” following this episode, but the hearing record is unclear on this point. ( Id. at 705–07.)

B. The 20062007 School Year: J.G.'s Sophomore Year at Scarsdale Alternative School

At the encouragement of her parents, J.G. applied to the Scarsdale Alternative School (referred to by all participants at the hearing as the “A School”) towards the end of her freshman year. (Tr. 707–09.) Howard Rodstein, the Director of the A School at the relevant time, testified for the District at the hearing. ( Id. at 266–67 (testimony of Howard Rodstein).) As he explained, the A School is essentially a school within a school—an 85–student “community school[ ] focused on leadership and character development. ( Id. at 272–73; DX 31, at 1–2 (J.G.'s Sophomore Transcript, including two-page “Profile” of the A School).) Classes are generally smaller at the A School and the relationship between students and teachers is less formal than at the main Scarsdale High School, from which the students at the A School are drawn. The A School offers separate courses from the main high school in several academic subjects, with students taking the remainder of their academic program at the main high school and participating in extracurricular activities there. (Tr. 273; DX 31, at 1.) According to Rodstein, academics at the A School involve more “independent work” than is required at the main high school. (Tr. 275.) Students are assessed by written evaluations rather than letter grades. (Tr. 24 (testimony of Michael Mendelson, Dir. of Spec. Educ., Scarsdale Union Free Sch. Dist.); 276–77 (Rodstein).) Each A School student has an advisor (a member of the staff) and meets individually with that advisor every few weeks. ( Id. at 277–78 (Rodstein).) Each A School student also completes an internship in January of each year. ( Id. at 273; DX 31, at 2.) The A School holds weekly “community meetings,” at which all members of the School (students and staff) discuss “issues of concern to the community” led by teams of students. (Tr. 274–75.)

Admission to the A School is by lottery, but because the school and mandatory internship require a certain level of maturity, applicants who “don't have a sufficient history of responsibility” or “a certain level of maturity and autonomy” are screened out. (Tr. 273–74.) Apart from that, however, students at the A School are self-selected from the larger Scarsdale High School population. (DX 31, at 1.) The A School is not, and is not designed to be, a special education program. ( Id.; Tr. 25 (Mendelson); 272 (Rodstein).)

J.G. began her sophomore year as “one of [the A School's] strongest academic students in terms of her performance ....” (Tr. 279 (Rodstein).) Both Rodstein, who was J.G.'s advisor during her sophomore year and her English teacher, and Jennifer Maxwell, the A School History teacher, testified before the IHO that J.G.'s participation, reading, and writing skills were consistently high. (Tr. 279–80 (Rodstein); 431–32 (Maxwell).) Rodstein testified that J.G.'s work became more “sporadic” during the second quarter of the year in that J.G. turned in assignments less consistently and some of her work was “less focused.” ( Id. at 280.) Similarly, Maxwell testified that J.G. “went through a period when she was having trouble completing assignments and got off track for awhile.” ( Id. at 428.) A.G. confirmed that J.G.'s performance was “like a sine curve,” going “up and down,” and that J.G. had a harder time keeping up as the work got more difficult. ( Id. at 725–26.) Both Rodstein and Maxwell agreed, however, that J.G. bounced back academically by spring. ( Id. at 280, 284 (Rodstein); 428 (Maxwell).) Indeed, Maxwell recommended J.G. for the “Advanced Topics” course in history at the end of the year. ( Id. at 432.) Getting into that course required J.G. to take a qualifying exam in January of her sophomore year and collect recommendations from previous teachers. ( Id. at 335 (Rodstein); 433 (Maxwell).)

This variable performance is generally not reflected in J.G.'s year-end grades and evaluations, as the narrative comments of J.G.'s teachers are by-and-large positive and do not mention periods of late or missed work. (DX 31, at 5–7 (teacher evaluations in Chemistry, History, and English).) 4 J.G. scored a 97 on the Global History Regents Exam and earned an “honors designation” in English by reading and writing about two extra novels. ( Id. at 6–7.) As for the classes J.G. took in the main high school, J.G. received B+'s in “Advanced Mathematics,” Physical Education, and Art, and a Bin Latin. (DX 31, at TOC; DX 32 (Scarsdale High School sophomore transcript).) Her last two test scores in Math were 94 and 100. (DX 31, at 3.) J.G. interned at a local bakery in January 2007, where she received rave reviews from her supervisor. ( Id. at 10–13.) J.G. herself wrote in a self-evaluation that the...

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